Jammie Thomas Asks Supreme Court: How Much Is Too Much For Copyright Infringement?

from the here-we-go dept

Back in September, we wrote about the latest in the Jammie Thomas-Rasset saga, in which an appeals court had ruled that the original (of three) district court rulings in her case, in which she was told to pay $9,250 per song was perfectly reasonable. As we noted, this was more or less a procedural thing, in an effort to get to the main event: a challenge on the Constitutionality of ridiculously high statutory damages for copyright. And... that's where we are now. Thomas-Rasset has petitioned the Supreme Court to hear her appeal on exactly that question:

Is there any constitutional limit to the statutory
damages that can be imposed for downloading music
online?

The argument, as when it has been brought up earlier, is that such huge fines represent a 5th Amendment due process problem, as the awards simply are so far out of line with any reason. The filing runs through a brief history of the recording industry's fight against file sharing (amusingly quoting from the movie The Social Network to make the point that the recording industry has seen better days).

Thomas-Rasset makes the case that the three different verdicts, with three different crazy amounts from three different juries highlights the problems with today's statutory damages, and how disconnected they are from reality:

Statutory damages imposed in this way are
unpredictable, unconstrained, and equally as punitive
as punitive damages; the jury’s role in imposing them
is even more divorced from finding facts, from deciding
what happened, than it is in imposing punitive
damages. The order-of-magnitude difference between
the verdicts in this case, $222,000 in the first trial,
$1,920,000 in the second trial, and $1,500,000 in the
third trial, demonstrates this. The verdicts are
unpredictable and, in a deeper sense, arbitrary; they
are not tied to any fact or rationale that justifies them,
that explains why the law imposes this particular
penalty on this particular defendant.

And it's that arbitrary nature that becomes a Constitutional problem under the 5th Amendment:

Thomas–Rasset contends that the award of
statutory damages against her violates the Due Process
Clause because it is tied not to the actual injury that
she caused or other features of her conduct, but to the
injury caused by file sharing in general. Like punitive
damages, statutory damages are imposed not only to
compensate the plaintiff, but also to deter the
defendant and others from engaging in similar conduct
in the future. While this general approach, punishing
one offender to deter others, is constitutional within
limits, even gross limits of fair retribution for an
individual’s conduct, due process limits the extent of
the punishment. This Court recognized as much in
reviewing awards of statutory damages as early as a
century ago.

In Williams, decided in 1919, a railroad challenged
statutory damages of “not less than fifty dollars nor
more than three hundred dollars” imposed for
overcharging two passengers by 66 cents in violation of
Arkansas’s regulation of railroad rates. 251 U.S. at
63–64. The railroad argued that such statutory
damages “contravene due process of law” because “the
penalty is arbitrary and unreasonable, and not
proportionate to the actual damages sustained.” ... This Court held that the Due Process Clause “places a limitation upon the power of the states to describe
penalties for violations of their laws” and that due
process is denied “where the penalty prescribed is so
severe and oppressive as to be wholly disproportioned
to the offense and obviously unreasonable.”

And, of course, they claim that this case clearly shows that statutory damages are completely disproportionate:

Under Williams and the other early cases, the
award of statutory damages in this case is
unconstitutional because it is “grossly excessive” and
“wholly disproportioned to the offense.”.... $222,000 for 24 songs that would have cost
$24 on iTunes is absurd. Nor can $222,000 be justified
by the kinds of other features of the offense identified
in Williams.

There's a lot more in the full filing, but it also takes on things, like the claims that the record labels should be able to get more from Thomas-Rasset, because they have to cover for other files sharers. That doesn't fly:

a defendant may be punished for his own
similar acts only, Campbell, 538 U.S. at 422–23 (“A
defendant’s dissimilar acts, independent from the acts
upon which liability was premised, may not serve as
the basis for punitive damages. A defendant should be
punished for the conduct that harmed the plaintiff, not
for being an unsavory individual or business.”), and
only for the injury that he inflicted on the particular
plaintiff in the case, not for any injuries that he
inflicted on nonparties, Phillip Morris USA v.
Williams, 549 U.S. 346, 353 (2007) (“the Constitution’s
Due Process Clause forbids a State to use a punitive
damages award to punish a defendant for injury that it
inflicts upon nonparties or those whom they directly
represent, i.e., injury that it inflicts upon those who
are, essentially, strangers to the litigation”). These
cases preserve the civil nature of a case
notwithstanding the imposition of a punishment: the
case remains between two parties, and the civil
punishment must be justified with reference to the acts
between those parties, not acts in the world in general.

There are a number of legal arguments... and one appeal to emotion, which comes off as a bit weak, though you never know how well some of those might play out:

But lawyers should care about these cases for an
entirely different reason: This is not just. It is unfair, it
is not due process, for an industry to sue 12,500 people
and threaten to sue 5,000 more, wielding a statute for
which they lobbied, under which they can threaten
hundreds of thousands or millions of dollars in
statutory damages, where the only way to resist is
through modern, complex, expensive federal process, so
that the only reasonable choice is to pay the settlement
and be done. That’s extortion, not law. We cannot
govern that way.

I am skeptical that this will result in a ruling in favor of Thomas-Rasset (even if the Supreme Court grants cert -- which I'd say is possible, but unlikely). However, perhaps I'll be pleasantly surprised. This is an absolute long shot, especially given a Supreme Court that, while skeptical of patent expansion, has shown a bizarre willingness to let Congress continue to stretch and change and expand copyright law at every turn.

I was being e-adulterous to Techdirt and discussing this issue on another website, but one thing came up in the conversation and I wasn't sure if it was ever addressed, but do they know how much she actually shared these files?

I mean can they put a number to the people who downloaded the bits of information from her seeding?

Re:

If that were the case they should just go ahead and jack up speeding tickets to a few hundred grand.

Why not. They did as much in California for running a stoplight when they started putting in red light cameras. Fine for a ticket went from $143 to $490, and then there was the whole commercial enterprise determining guilt thing and the provisions written into the contract with the cities to prevent cities from changing yellow timings (or making them shorter than legal.) The only problem is, unlike this case, jacking up speeding ticket or red light fines isn't arbitrary (well, it is, but it is legally arbitrary.)

The government determines, usually through congress, what the fine will be and there is at least some due process there. Usually there is some expert that determines what the fine should be, and this should, at least theoretically, be based on the law.

In this case, a jury of your peers, based on shoddy instructions from the RIAA/MPAA, determines what the fine will be based on little more than "I feel this is what the fine should be." The punishment should fit the crime, and I think it is absolutely amazing that the value of a human life is far less than the value of a single song shared on Napster/Kazaa/Bittorrent.

It is pass due to find a way this never happens again, we allowed our system to be corrupted, we allowed immoral people to take charge and influence the course of our laws.

It is time to say no, but more importantly to find a way that prevents bad actors from having this power, we need to change the laws but first we must find a way to keep them in the right direction.

We need more social tools to make it harder so a minority impose their whims on everybody, we need a way to show laws and vet them before they become law, we need to punish severely those who for their own personal interests help corrupt that system so it may serve as a deterrent to others would be lobbyist/politicians/managers.

There must be a way to make a system that make it difficult for bad/crazy/misguided people to control everything.

and one appeal to emotion

Which is sad but true.

But lawyers should care about these cases for an entirely different reason: This is not just. It is unfair, it is not due process, for an industry to sue 12,500 people and threaten to sue 5,000 more, wielding a statute for which they lobbied, under which they can threaten hundreds of thousands or millions of dollars in statutory damages, where the only way to resist is through modern, complex, expensive federal process, so that the only reasonable choice is to pay the settlement and be done. That’s extortion, not law. We cannot govern that way.

Re:

If the Supreme Court doesn't overturn the previous courts' verdicts, Jammie Thomas-Rasset's entire life may as well be in shambles. Is it worth it to ruin someone's life simply for downloading music off the internet? Even if she were penalized, it should be for the actual retain cost of the music and not some arbitrary statutory damage as defined by industry legal suits.

The corporate elite have no trace of compassion for their fellow man; they don't care how many lives they step on and ruin, only that they get their way. If there was any justice, these robber-barons would be the ones on trial for bribing elected officials, theft and tax evasion. It's very telling when the board of directors over at Hostess split a $30 million bonus amongst themselves, at the expense of thousands of workers' jobs and pensions. Of course they get off scott-free.

Absolutely insane what is going on in this country. For the first time in my life, I feel ASHAMED of my country! What have we devolved into!?

Bizarre disconnect.

Under the NDAA, you don't even have a right to habeas corpus! With ink on a piece of paper, you're effectively made a non-person. -- So the first disconnect I raise is wondering how you guys can possibly hold out any hope.

But there IS a low-level appearance of Constitutionality left that MIGHT be applied here (I think it's to pretend there IS still a rule of law). -- But that only goes until one notes that corporate privileges trumps rights of "natural" person. ... She's doomed.

A start toward fixing this and many wrongs is: a) anti-corporatism ALL the time b) anti-Rich c) advocate limits on income d) return to common law.

... But after glancing at the comments, you fanboy-trolls are more concerned with making ad hom strawmen than with any fundamental rights. Being ankle-biters, your sight never gets above that level, so your yapping is QUITE mis-directed from the true hazards.

Re:

Says someone who arbitrarily made up the odds of being caught being 1/100,000.

Where did that number come from? Like speeding, you're odds of being caught are quite high, if the police bother to enforce the law 100% of the time. Since they selectively enforce the law, you're odds appear to go up, but that's not because you're hiding it better, it's because they don't have the manpower to catch everyone.

They can attempt to download everything on a torrent site and harvest every IP address, and then the odds of being caught go up dramatically.

Put another way, if they hired one guy with a 20 year old computer on a dialup modem and told him he was the only guy trying to catch people infringing on copyright-- the odds of getting caught would be astronomical, and they could sue the one in a billion person for eleventy gazillion dollars for downloading one $1.29 song.

Re: Re:

eleventy gazillion dollars

I am not sure how much “eleventy gazillion dollars” is. At some point the number has no real connection to wrong that the individual may have done, but rather is meant chiefly to “send a message” to society at large. A number chosen for in terrorem effect.

Re: Cost per bit

There's a thought!

Given that we know the per song extortion, if we can find how the precise file size, we could calculate a average "cost per byte" and "cost per bit" to determine how much she's being charged (on average) for every 1 or 0.

Then, compare/contrast to the cost of other things (Photoshop, or some such) provided we also calculate the cost per bit of those as well.

Re: Re:

Shall we also blame the financial collapse, rampant government spying, mortgage crisis, corporate bribery, political stonewalling, staggering unemployment, outsourcing, states funding corporate subsidies at taxpayer expense, and every other woe of this nation on piracy?

Re:

" Even if she were penalized, it should be for the actual retain cost of the music and not some arbitrary statutory damage as defined by industry legal suits."

There should be some additional fine associated with it. If you're caught the risk should be greater than just having to pay. With that said, it needs to be reasonable. Up to $150,000 per is not reasonable, especially for non-commercial use. The lower bound (~$2250 IIRC) is not even reasonable.

Re: Bizarre disconnect.

"you fanboy-trolls are more concerned with making ad hom strawmen"

He says before just making ad-hom attacks on a strawman... Even on the odd occasion where you stumble across something true, and perhaps even resembling a real point, you still make yourself look like a moron. Well done.

Re: Re:

I think it is absolutely amazing that the value of a human life is far less than the value of a single song shared on Napster/Kazaa/Bittorrent.

I agree with your sentiment, but what you said is not an example of that. Running a red light doesn't cost a human life. Running a red light and hitting someone does. There are street lights near me that I could run on red all day and not hit anyone. You could pull up to a red light, wait till it's safe and then cross and never cause any loss of life, damage to property, or even raise anyone's heart rate. We can debate about how much loss there really was in the Thomas-Rasset case (though I suspect we'd both agree that it was little if any at all), but there is no loss to anyone if I run a red light when there is no one else anywhere near that intersection.

That's the problem with a lot of traffic laws, and especially automated enforcement of such. There doesn't need to be any danger to anyone for them to be in effect. Why should I be charged with running a red light if I pull up to the intersection, find no one is coming and decide to go?

Disclaimer: I've never run a red light, and I haven't had a speeding ticket since I was a teenager well over a decade ago. This isn't just some rant of a guy who is constantly being fined for driving recklessly.

Re: Not a fan, but...

"...we allowed our system to be corrupted, we allowed immoral people to take charge and influence the course of our laws."

It's not that we allowed immoral people to corrupt the system (ok we did, but that's not the point). The point of the matter is that the laws were designed to deter commercial infringement. There was no digital distribution system in place when the laws were written and so the industry was only looking to keep people from mass bootlegging. It worked and we didn't care because it didn't affect us. No one was looking for us sharing our mix tapes or making copies for friends. Technology has changed and the law hasn't and the content industry is at full on war with it's customers. How crazy is that?

We all could talk about this ad nauseam, but the fact remains that it is economic suicide to go to war with your source of revenue.

bah

To the RIAA it is not as simple as setting an example. They have real numbers, real data, just like David Lowery. This data illustrates that if Jammie didn't download those songs and share those songs, she and the people who copied from her (though they can't prove it) would have spent that $222 000 or $1.92 Million or $1.5 Million on legal purchases of music!

That's the whole problem, they clearly had the money to spend on music instead of getting it for free. We all do! The industry has the data!

There's no competition from movies or video games or limited expenditures on entertainment due to hard economic times. There's no problem with a distribution model. There's no threat of competition from artists not willing to do exactly what the labels want.

It's all real math that says these infringers and infringement enablers would have spent that money on music! In fact, those awarded damages are actually cumulative to the money that would have been spent, which is $3.642 Million.

Re: Bizarre disconnect.

Re:

Copyright needs to be reformed to its original intent: that is, 14 years. As it stands, the public are the ones footing the bill for all this copyright enforcement and are directly affected by any changes to the letter of the law, so we moreso than anyone else deserve to help shape the process.

As you're probably aware, they're preparing for creation of a so-called small claims court specifically designed to process copyright infringers through the system faster, syphoning money from citizens' pockets and redistributing it directly into corporate back accounts. It's disgusting that they're even considering such a thing.

The wealthy like to raise a ruckus about how stuff like Social Security, Medicare and other things are merely entitlements for society, despite the fact that hard-working Americans spent years paying into the system. Then, starting with Bush Jr., the government began grabbing money out of SS and slipping IOUs (unfunded liabilities) in its stead. Remind me: who was it that footed the $700 billion bailout for the banks, despite public dissent? That is the very definition of entitlement, as are state subsidies for Hollywood, video game companies, etc. Those people did absolutely NOTHING to earn that money and everything to violate the public trust. Heck the banks foreclosed upon millions of homes, due to fraudulent lending practices, and STILL got away with it! No midnight raid by the feds, no auditing, no keeping tabs on all the money being offshored, ...no nothing. Yet some random individual (Jammie Thomas-Rasset) happens to download music from the internet and then finds herself contesting the legality of a million+ in statutory damages.

Our country used to be great, a bastion of liberty and a beacon of freedom, human rights and democracy that shed its light upon the whole world. Yet no more. We've allowed ourselves to become a hostile corporate-fascist police state, exploiting every dirty scheme in the book to redistribute wealth from the bottom to the top.

in all honesty, who in their right mind (apart from the greedy arse holes in the entertainment industries, who are, in actual fact the biggest rogues and thieves of all!!) think the sums that anyone is told to pay as recompense for sharing information is fair or right by any stretch of the imagination? the sums that courts dish out as punishment are totally outrageous and no reflection of the harm done in any reality!

Re: Re:

The corporate elite will stab each other in the back for profit; the pirates will help each other through life’s little difficulties. It's the pirates that volunteer their time to do translations, make maps, cleans houses etc. after natural disasters.

Re: Re:

As you're probably aware, they're preparing for creation of a so-called small claims court specifically designed to process copyright infringers through the system faster, syphoning money from citizens' pockets and redistributing it directly into corporate back accounts.

As you could have informed yourself, despite cheerleading by various photographer's lobbies for a copyright "small claims" court, the big music lobbyists all oppose the idea.

We wish to respond specifically to Question 8 of the August 2012 Notice of Inquiry: “Should the small claims process be limited to certain classes of works . . . .” The Music Industry Parties do not believe that our industry is in need of a small claims tribunal at this time. While we appreciate that there may be occasions when an alternative to federal court would be useful, we believe on the whole that the existing federal court system suffices for the prosecution and defense of music industry copyrights.

The comments submitted in this proceeding earlier this year in large part reflect the difficulties photographers in particular have in seeking remedies for unauthorized uses of their photographs. No other industry expressed a similar need for a small claims system. . . .

"Is there any constitutional limit to the statutory damages that can be imposed for downloading music online?"

This is a grossly inaccurate statement of the lower court's ruling, bordering on intentionally attempting to mislead the court.

While JRT certainly downloaded some songs, her liability in major part was based upon her distribution of songs to others.

Given the denial in the Tenenbaum case, it would indeed be most unusual for cert. to be granted. In the prior cases where cert. was sought, the only one that came even close to striking a responsive court was the one dealing with a claim of "innocent infringement". Even then that case was able to muster only one justice (Alito) recommending it be heard, but this was because Alito was intrigued by the "labeling" argument. Of course, it takes four Justices to agree before cert. is granted, and the chances such an agreement will be reached is likely somewhere in the order of extremely thin and none.

Re: Re: Re:

The fine for dumping trash near where I live is $1,000. That's a thousand dollars for throwing a trash bag out of you car. Is that egregious? Am I punishing the person I caught overly severely?

Or is the fine deliberately structured to make dumping trash not worth the risk? In all likelihood, you're not going to get caught. But is littering worth the possibility of paying $1,000?

If you go into a store and shoplift a CD and get caught, you can go to jail. Severe? Yes. Disproportionate? Perhaps. But it makes getting caught at shoplifting not worth the risk for most people.

Now, the "harm" caused to the store is, what, $10? So should the fine for shoplifting a CD equate to the actual harm? In which case, why wouldn't everyone try to shoplift everything? Best case, you get the CD for free, and worst case is that you pay what you would have paid in the first place.

So what's the answer? 2X? 3X? 10X 100X? At what point does the deterrence factor kick in?

Re: Re: Cost per bit

Not a very good system since bits are not really what determines the value of lost revenue. On the other hand, it is aeon ahead of the existing systems, based on completely arbitrary numbers.
Now, I wonder why non-commercial filesharing should have the same fines and damages as commercial sharing. The severity of the crime is a different beast entirely from commercial operations. Where did the user-protection go in the laws?

Re: Re:

canada

a bunch a things are wayyyyy differant.

A) social assistance and disability have limits to prevent undue harm and they spell it out directly as in 26/month for welfare and 50 for disability and once that is reached it cant be increased, only the length a time your required to pay can.

B) the maximum statutory in Canada is a mere 5000$ this also limits what others that can be garnished or have kids familly's etc have to pay...and its for all infringements NOT just one tune or 8....

C) the above applies to non commercial infringement , if you sell rent lease or otherwise profit from said material then you are liable for 20000$ PER INFRINGEMENT....you must however under the new law prove non commercial infringement.

If miss Thomas lived in canada ....its likely they'd not even have perused her cause the cost of lawyers being what is is might mean as little as 3 K just to show up at the court.MIGHT be more and if its too close to 5 grand it isn't worth it and judges under the law have been instructed to error on the low side to prevent undue harm so 100-5000 is the range.Run the risk of suing and not geting your legal costs covered...

Logic?

teksavvy ussies

OH and what is going on with canada's isp teksavvy is they are in court with voltage and they are being asked to provide details on users identities

IF i were said users i'd never tell anyone if your on disability or welfare and let them sue and then show up regardless and make the buggers pay....

i am with teksavvy have had many a chat with both the old owner rocky and the new one his brother marc....

I will say if the term lengths on copyright were sane there arguments to fight against it might fly....
150 year sin the usa and 80 ( was 50 ) in canada are just cruel and unusual punishment for those of us that like to create...i have tons of stuff ive made but cant legally share cause id have to pay some fee i cant afford to some smuck too lazy to do crap with things.

Re: Re: Re: Re:

Given that punishments for infringement have been ratcheted up as far as the death penalty without much effect, I'd have to say the answer to your question is 'never'.

The severity of the punishment is not a deterrent. Those who knowingly commit an offense always believe they won't get caught. The only way to deter people is to guarantee that they will be caught. The cost of doing that is way more than they value of the entire music industry, let alone the value of the major record labels.

K.A.D. Camara and Charles R. Nelson. Two names I would never want to see on my petition for cert. Good grief. Could she be in worse hands? Even the question presented is completely idiotic: "Is there any constitutional limit to the statutory damages that can be imposed for downloading music online?"

The answer is, of course, yes. There is a constitutional limit. The question should be whether the damages in this case exceed that limit. I can't wait to read the whole thing. Thanks for posting, Mike.

Re: Re:

"They can attempt to download everything on a torrent site and harvest every IP address, and then the odds of being caught go up dramatically."

Actually, this is a good idea. Some might upload millions of torrent files with popular titles, and wait for the DMCA take downs.

If 1000000 torrents with popular titles are added to the public searches every day, there is too much to monitor. Let us swamp the mafiaa with millions of torrents. If they want to catch the initial seeders, they must attempt to fetch all the likely titles which is impossible.

Re: Re:

I think he's going to have to wait for someone to get hit with statutory damages on 10,000 songs. Such multiplicity, I think, would be a much stronger case. But for the twenty-four tracks that she's on the hook for at the lower end of the damages range, that argument won't fly. The Court's not going to address some metaphysical hypothetical. They're going to look at the 9K she's liable for per track, and that amount isn't violative of due process.

Re: Re: Re: Re:

Re: Re: Re:

Considering that the number of uploads has to equal the number of downloads, then on average, one person would have downloaded each song from each user. Right?

There was no evidence for this 10000+ claim in the documents. (If there was evidence of THAT many uploads, they would be going for actual damages instead of statutory.) Actually, I think they cite that the nature of the networks is such that they do not know if ANY of her songs were accessed outside of when they were accessed by the plaintiffs.

Re: Re: Re: Re:

The problem I have with this is "making available" and inferring damages from "making available."

You should only be able to claim damages if proven something actually happened.

Posting someone's phone number on your front door is making it available. But just because the cops drive by and see you posted the number does not mean anyone else noticed. So what damages can you actually claim?

There should be a cap on baseless-claims, such as the inferred by making available claim.

Too bad civil courts are all about singing and dancing and not about proof. But I have a funny suspicion, even if non-commercial infringement was deemed "criminal" and warranted jail-time, the burden of proof would be all on the defendant, proving their innocence, while the plaintiff's just dance and sing.

Re: Re: Re: Re:

The problem I have with this is "making available" and inferring damages from "making available."

You should only be able to claim damages if proven something actually happened.

Posting someone's phone number on your front door is making it available. But just because the cops drive by and see you posted the number does not mean anyone else noticed. So what damages can you actually claim?

There should be a cap on baseless-claims, such as the inferred by making available claim.

Too bad civil courts are all about singing and dancing and not about proof. But I have a funny suspicion, even if non-commercial infringement was deemed "criminal" and warranted jail-time, the burden of proof would be all on the defendant, proving their innocence, while the plaintiff's just dance and sing.

Re: Re: Re:

Right, but they're not asking for a hypothetical, are they? They're not saying "Well, if she was hit with the maximum, would it be constitutionally legal?" They're asking if there is a constitutional limit to the amount someone can be charged for copyright infringement. That's not hypothetical. They could very well say yes, but the amount be greater than what JT has to pay.

I think they now know that JT was a bad case to be a champion, so they're trying to get whatever they can out of it, so when the next case goes to court maybe a little more sanity can be used when figuring these amounts.

Re: Re: Re: Re:

I agree that "they're trying to get whatever they can out of it," but I don't think there's even a remote chance that the Court will address anything other than the actual damages awarded in this particular case. To even frame the question presented this way is ridiculous since they knows the Court won't answer it as is, IMO.

Re: Re: Re: Re:

Leaving aside that stealing the CD leaves the store with one less CD, and infringing does not (which is why one is civil and one is criminal)...

In this case, each infringement was for a single song, which you can get for about $1. The award was REDUCED to $2250 per song, and the appeals court rejected that reduction.

I think 2250x is already stretching the limit. At some point it becomes unconstitutional. $24 worth of songs should not produce a judgement of $222,000 (or $1.5 million, or $1.92 million, as other juries ruled on the same case when it was retried). I think it's pretty obvious that if someone got a fine of $222,000 (or $1.5 million, or $1.92 million) for stealing 2-3 CD's from a store, that would be thrown out as an unconstitutionally excessive fine in violation of the 8th amendment.

Half the problem here is with the juries, who should have seen the noncommercial nature and extremely low monetary value of the infringement, and issued a correspondingly low amount of damages. If the $750 minimum (or something close to it) isn't going to be used on a case of noncommercial infringement of $1 songs, when WILL it be used?

The other half of the problem is that the juries have almost no guidance. Pick a number between $750 and $30,000. But if it's provably willful, the range is $750 to $150,000 and if it's provably unintentional, the range is $200 to $30,000. That's all the guidance they get?

Re: Re: Re:

I agree with your sentiment, but what you said is not an example of that. Running a red light doesn't cost a human life

I never meant it that way. I don't agree with the change in the fine for running a red light, for exactly the reason you state. Certainly I don't agree with it when the fine was raised solely to benefit the government and the contractor who provided the red-light cameras financially.

Red-light cameras are an abomination of justice...especially when the rule of law is the spirit of the law. If the police officer is not there to witness the totality of the event, and only relies on a camera (which can't see everything,) to determine that the spirit of the law has been broken, then it is wrong. Unfortunately, the judges haven't agreed with this.

What I meant by value of life vs. value of download was that we put people in jail for 5 years for murder, but we strap Thomas-Rasset with a fine she will never be able to pay off for making one song available (ok, she made more than one song available, but she didn't kill anyone.)

Re:

"Paying $1 per infringement is too much. Infringement shouldn't be a crime or a tort, it should be perfectly legal. Legalize infringement, abolish IP laws."

Accessing something to read or listen to it is legal and will probably stay that way, even though MAFIA lawyers call it infringement. But there's no way mass distribution of a copyrighted work you do not have the rights to will ever be perfectly legal.

That said, I would demand reform if I were an RIAA or MPAA member, because the current penalties are going to go the way of gay marriage bans and Prohibition even if SCOTUS upholds these awards.

Re:

"This is a grossly inaccurate statement of the lower court's ruling"

Yeah, it seems that way to me too. JRT's liability was for sharing, not downloading.

The damages are grossly disproportionate because they're from a statute that was never intended to be applied to what she did. They address mass bootlegging for profit (and fairly), but are IMO a bad fit for one-to-one sharing of published work.

Re: Re: Re: Re:

At what point does the deterrence factor kick in?

We can actually answer this, thanks to numerous studies done over a lot of years. if the behavior is something that the person isn't highly motivated to engage in, then the penalty doesn't have to be very high to have a deterrent effect. $1000 fines for littering work pretty well, because people aren't really very motivated to litter in the first place.

If, however, the behavior is something that the person is actively motivated to do, high penalties have no deterrent effect at all, even if the penalty is death. High penalties do alter how a person engages in the prohibited activity, but not whether they do.

Re: Reading it versus comprehending it.

I agree 100%. $150,000.00 for downloading a single track is outside of my comprehension and therefore I find no deterrence in the statutory rate. A single download with the maximum penalty would force me into bankruptcy... period. The situation is so absurd that I see the rate, laugh about it, and click the next torrent link to try something new.

If the penalty was more realistic, then people might actually find some deterrent in it and rethink a potential infringement. What should this rate be? I have no idea... $500.00 is an amount that would hit my wallet enough that I'd feel it and I could actually pay it, but even that is more money that many people could reasonably pay especially in the event of judgments for multiple infringements. Rasset was accused of sharing 24 songs, so that would be $12,000.00. I couldn't pay that any easier than $150,000.00...

The MAFIAA wants these sensational judgments that they can throw out there to pressure people into settling, but I really think they have the opposite effect. When I see a judgment of 1.5M against a housewife for maybe sharing 24 songs, I have even less respect for the rightsholders. Even beyond that, due to my nature, I feel the only way to "help make this right" is by making sure they get none of my money or the money of anyone I know.

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Of course they disagree with the small claims court. Small claims status in the US is determined on a state level but can rarely exceed a few thousand dollars. By setting this court up they would effectively render their extortion scheme of using 1.5M judgements to force settlements useless. The settlements they are asking for are typically more than they could get in a small claims setting. They have a lot to lose if this goes through.

I'm 100% connected here

""A start toward fixing this and many wrongs is: a) anti-corporatism ALL the time b) anti-Rich c) advocate limits on income d) return to common law.""

Sound extreme. Too extreme to be palatable and too extreme to work.
A better solution is...Socialism for society ...... Capitalism for Individuals and business.
Where society is given preference over capitalism.
The complete opposite of the growing corporate society that we partially live in today.

Private prisons, private schools, private roads, private police etc.... are not good for society as a whole.
Like people profiting from more criminals isn't an incentive to make more people criminals ?
Like people profiting from better test results isn't an incentive to make other competing schools, "bad schools" ?Have a look at the incarceration rate of America please, then decide how well the capitalistic system imposed on societal issues is working out for society
Or this case here.
■ Copying endlessly is at no cost, now, to society.
■ Capitalistic attempt to limit society.
■ Capitalistic urge to punish all who defy the limit imposed on society.

Private pizza shop and private tech companies etc.... good for society and extremely good for capitalistic gains by individuals.
We all know how capitalism benefits individuals, but they shouldn't dictate to society.

The point is that for societal issues, Capitalism does not work and is a plague on actual people.
Only a stupid would be blindly anti-capitalist.
Only a stupid would be blindly a capitalist.
As for your irrelevant rant about ankle biters....... well that just irrelevant.Next time tell us how many bowel movements you have had in the previous week.
At least that irrelevant info would be somewhat amusing.

Re: Re: Re: Re: Re: Re:

Yes, they get evidence, but there's no formula that says that a particular set of evidence should result in a particular verdict. As was shown here by the different judgements when the case was retried. $222,000, $1,500,000 and $1,920,000 on the same evidence.

It's almost too bad the one jury did return "only" $222,000, because if the $1,920,000 was going to the Supreme Court, they'd almost have to overturn it. $80,000 per song would have a much better chance of being thrown out than $9,250 per song, even though both are far too high.

Re:

I am prone to understatement. Hence my use of "skeptical" in lieu of the more accurate "laughable". Of course, one can never predict what will happen with a petition for cert. since stranger things have happened. Hopefully, the Respondent will present a reply to the petition that is sufficiently compelling to convince the court that the petition is best relegated to a circular file.

Re:

I wish Jammie Thomas and her family the best of luck, and hope she wins her case. I can't believe she was fined over $1,000,000 dollars for listening to music. That definitely sounds, at the very least, like extortion. Possibly enslavement, because nobody can pay that off working at McDonalds.

I have a feeling that the Supreme Court will refuse to hear her case. Vice President Joe Biden is best friends with MPAA King Pin Chris Dodd. Even though the White House is supposed to answer to the Supreme Court, it usually doesn't work that way in America anymore. Lobbyist run the US Government now.

Re: Re: Re: Re:

"So what's the answer? 2X? 3X? 10X 100X? At what point does the deterrence factor kick in?"

For most people, I think a $1 000 000 fine is a deterrent.

So it looks like you have found the solution to all crime. We just make any offense a fine of a $1 000 000. No one will ever break a law again, not even in the heat of the moment when emotions are ruling.

Re: Re: Re: Re: Re:

That seems to be the general consensus. How do you feel about these fines, personally? (aka, not as a law student) It seems obvious to me that those fines weren't meant to exist in a world where copyright infringement is difficult to avoid; where an 8 year old can infringe on 1000's of works before breakfast for damn near no cost.

I think there needs to be an exception for personal use-- anywhere the infringing files aren't being sold directly. I know that idea makes a copyright maximalist's head explode, but it seems to be the only option that makes any sense. (Keeping in mind that you can legislate morality. See: US Prohibition)

If you want to make someone buy your non-scarce product instead of copying it from an unofficial source, you have to make them *want* to; you can't scare them into being a customer.